Oregon Short Line R. Co. v. Gubler

• Decision Date: 11 November 1925
• Docket Number: No. 6969.,6969.
• Citation: 9 F.2d 494
• Parties: OREGON SHORT LINE R. CO. v. GUBLER.
• Court: U.S. Court of Appeals — Eighth Circuit

9 F.2d 494 (1925)

OREGON SHORT LINE R. CO. v. GUBLER.

No. 6969.

Circuit Court of Appeals, Eighth Circuit.

November 11, 1925.

Robert B. Porter, of Salt Lake City, Utah (George H. Smith, J. V. Lyle, and Dana T. Smith, all of Salt Lake City, Utah, on the brief), for plaintiff in error.

Willard Hanson, of Salt Lake City, Utah (B. L. Liberman and A. H. Hougaard, both of Salt Lake City, Utah, on the brief), for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and WILLIAMS, District Judge.

STONE, Circuit Judge.

This is a writ of error from a judgment entered on verdict allowing recovery of damages for personal injury.

Two points are presented here: (1) That the evidence is insufficient to show any negligence on the part of the defendant; (2) that the injury did not occur in interstate commerce and is therefore subject to the Employers' Liability Act of the state of Idaho.

I. The negligence alleged is that plaintiff, who was employed in connection with installing an electrically controlled switch and signal in place of a hand-operated switch connecting two main lines operated in interstate commerce, was struck by a track car coming west on the east-bound line at a high rate of speed without lookout, all in violation of the rules of operation of the railway company. There is clear evidence, on the part of the plaintiff, in support of each of the above allegations. In fact the opening statement for defendant concedes such negligence. Counsel stated:

"I think the evidence will show you that the foreman did not use the care that he might have used, that he might have prevented this accident had he used a little more care, but the evidence will also show that the plaintiff was equally guilty of negligence."

In another part of the statement counsel said:

"Now I merely mention these matters; I am not very much concerned in the way this accident happened. Our defense is that the plaintiff was not engaged in interstate work; he was engaged strictly in state work; that, therefore, he is subject to the compensation law of the state of Idaho."

Contributory negligence is not involved in this court. The question of the negligence of defendant was properly submitted to the jury.

II. Whether an employee is engaged in interstate commerce at the time of an accident is sometimes a very close question, becoming almost one of degree at times. This is particularly true where the employee is not engaged in the operation of instrumentalities of interstate commerce, but in repairs, replacement or new construction in connection with such commerce. The decisions of the Supreme Court and of this circuit are to the effect that such work if in the nature of repair or replacement or in such close proximity to instrumentalities of interstate commerce that they may be affected by the work done constitutes interstate commerce, while purely new construction does not. Kinzell v. C., M. & St. P. Ry. Co., 250 U. S. 130, 39 S. Ct. 412, 63 L. Ed. 893; N. Y. Central R. R. Co. v. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; C., B. & Q. R. R. Co. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941; Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Bravis v. C., M. & St. P. Ry. Co., 217 F. 234, 133 C. C. A. 228. Also see S. Ry. Co. v. McGuin, 240 F. 649, 153 C. C. A. 447 (4th Cir.); P. B. & W. R. R. Co. v. McConnell, 228 F. 263, 142 C. C. A. 555 (3d Cir.) and C. & P. S. Ry. Co. v. Sauter, 223 F. 604, 139 C. C. A. 150 (9th Cir.). Of course, all repair and replacement is, in a sense, new construction, but it is not new construction in the sense above used. Also, it would seem that, where the main purpose is repair or replacement, the fact that such will result in improvement should not necessarily make it new construction.

There is no dispute as to the work being done here. There were two main lines used daily in interstate commerce. These lines were protected by a semaphore signal system. This system indicated the condition at switches joining the main lines. Near a small station there were various switches connected with these main lines and used in interstate commerce. Some of these switches were operated from the station house by an electrical device which was connected with and used some of the equipment of the semaphore system. Two switches, at that place, were not so connected but were operated by hand. One of...